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Some Legal Questions of the 
Peace Conference 



address 



BY 



ROBERT LANSING 

Secretary of State of the United States 
BEFORE THE 

AMERICAN BAR ASSOCIATION 
BOS TON, MASS. 



SEPTEMBER 5, J 919 




WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1919 









v$. 



Some Legal Questions of the 
Peace Conference 



address 

BY 

ROBERT LANSING 

Secretary of State of the United Slates 



BEFORE THE 



AMERICAN BAR ASSOCIATION 
BOSTON, MASS. 



SEPTEMBER 5, 19)9 




WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1919 



■9 






K 



©lit 
Mrs.Wffli. H.Baldwin 
Feb. 25 1027 



ADDRESS 



I realize that any subject which lias to do with the Peace Con- 
ference possesses at this time a peculiar interest not only to mem- 
bers of the legal profession but in fact to men of every avocation 
and every nationality. At the same time to treat of these subjects 
dispassionately and without inviting the charge of undue prejudice 
is by no means an easy task. We are still so near the Great War 
and its dreadful consequences, so near the complex questions which 
were considered and decided by the Paris Conference, that it is prac- 
tically impossible to form a true perspective of the proceedings of 
the Conference or to give even a relative value to the things that it 
accomplished. 

A man, however learned he may be or however high a reputation 
he may have gained as a statesman or political thinker, can not 
speak with certainty of the future. Emphatic or intemperate utter- 
ances in favor of or against the settlements reached by the nations 
represented at Paris ought not to be made; and, if made, they will 
assuredly not receive the unqualified approval of men of broad 
vision and judicial mind. It is unfortunate that the difficulties and 
obstacles which had to be overcome or avoided by the negotiators 
can not be fully explained at this time. If they could be, I believe 
that many of the objections to the Treaty would vanish or at least 
not be urged by those who have been vehement in their denunci- 
ation of some of its provisions. I am sure that it is ignorance or 
at least incomplete knowledge which has induced much of the criti- 
cism of those who are otherwise familiar with our foreign affairs. 
I prefer to believe this to be the cause, rather than to charge them 
with intellectual dishonesty or with being governed by their emo- 
tions or by motives unworthy of anyone who seeks to be just in 
forming an opinion. 

In discussing the legal questions, which are suggested by the Peace 
Conference or are directly raised by the Treaty of Peace, it is my 
purpose to do so as impartially as possible. Of the two classes the 



suggested questions rather than the definite questions presented by 
the provisions of the Treaty are to my mind the most important. They 
may lack the preciseness of a formulated provision but they invite 
the especial consideration of those who are interested in the 
philosophy of law and its interpretation into a standard of interna- 
tional conduct. 

It is manifest that this war has given an impetus to what is com- 
monly termed Internationalism, though it would be more proper to 
call the communistic doctrine Mundanism. This pseudo-Interna- 
tionalism seeks to make classes or in some cases individuals the units 
of world organization rather than nations. It is the enemy of 
Nationalism which is the basis of world order as we know it, It 
is a real, though not always an open, enemy of national independence 
and of national sovereignty. Its more radical adherents demand 
class allegiance and discourage or denounce national allegiance. In 
its extreme form it purposes to remove national barriers and to over- 
throw national governments whether democratic or monarchic in 
form. This is not a new communistic doctrine or theory but it never 
became an actual menace to the present social order until the suc- 
cessful revolution in Eussia fell into the hands of the Bolsheviks. 
Spreading from this center of unrest and disorder the movement 
has today assumed proportions which command the serious considera- 
tion of every civilized people. In certain lands the economic condi- 
tions and state of wretchedness resulting from the war have been 
peculiarly favorable to its growth. However safe this country may 
be from the more pernicious forms of this doctrine and however 
confidently we may rely upon the sound common sense of the Ameri- 
can people, we cannot ignore the dangerous possibility that moderate 
forms may under certain influences develop into extreme and threaten 
our political institutions. We ought to realize that the world can not 
be organized on both Mundanism and Nationalism. The political 
cleavage must be between nations or between classes. We must choose 
between these two conceptions of world order. 

I have no doubt what the final verdict will be unless thoughtful men 
fail in their duty. It will be for Nationalism, not the evil form of 
Nationalism which was the bane of the eighteenth and nineteenth 
centuries, but the democratic form which will develop in the present 
century and become the cornerstone of the new order. 



I have referred to Nationalism in this connection because the Treaty 
of Peace by its terms and method of negotiation makes the nation the 
unit of responsibility and of right. The Treaty is an agreement be- 
tween sovereign states and imposes obligations upon nations, not upon 
individuals. Thus, it announces to mankind that the nationalistic 
idea is to be preserved as the basis of society and that nation will deal 
with nation as in the past. 

This fact is of importance from the legal standpoint, since it shows 
that international law, and not world law affecting individuals, is to 
continue as the standard of intercourse between governments and peo- 
ples. With such an evidence of the will of mankind and with such 
an assurance that Nationalism will not be abandoned, we can proceed 
to rebuild our international system and codes upon sure foundations. 

In times of peace there have been three ways of composing inter- 
national controversies, namely, diplomatic settlement, mediation, an 
aid to diplomatic settlement, and judicial settlement. The Treaty 
of Versailles has not changed these three methods. They exist in 
the Covenant of the League of Nations which declares for arbitration, 
international inquiry and mutual understanding. The peaceable 
settlement of a controversy between nations thus falls within the 
sphere of legal justice or the sphere of diplomacy, since mediation 
or inquiry is an adjunct to an amicable arrangement between the 
parties to a dispute, and therefore is diplomatic in character. 

The Covenant has gone far in developing a new process of diplo- 
matic adjustment of such differences as have been heretofore the 
frequent causes of war between the disputants, but its only contribu- 
tion to the advancement of international arbitration is to make it in 
a measure partially compulsory, and to provide that " plans for the 
establishment of a permanent Court of International Justice " should 
be formulated and submitted to the members of the League by the 
Council. It is with this latter provision that jurists should be par- 
ticularly concerned for the usefulness of this instrument of settle- 
ment depends upon the proper constitution of such a tribunal and 
the practical method of procedure before it. 

Many of us, who have had experience before international courts 
and commissions, have realized the inadequacy and unsatisfactory 
character of the present system of arbitration and the imperfect, if 
not objectionable, method of procedure which has been followed. 



(5 

Appreciating now as we did not before the evil purposes which the 
Powers of Central Europe had so long secretly cherished, it is re- 
markable that The Hague Convention of 1907 developed as far as it 
did a workable system for the judicial settlement of international 
disputes. I have no sympathy with those who criticize or condemn 
the accomplishment of that great assembly of distinguished states- 
men and jurisconsults who formulated an instrument and a method, 
by which justice could be applied to nations as national judiciaries 
have applied it to individuals. It is ignorance of the difficulties of 
their task or in some cases I fear a less justifiable reason which has 
induced unfavorable comment of or contemptuous indifference to the 
real achievements of The Hague Conferences. 

The creation of The Hague Court was a tremendous forward step 
in the prevention of international wars in that the signatories to the 
organic convention committed themselves to the standing policy that 
justice should be the controlling principle in all relations between 
nations and that its application to concrete cases by an impartial 
tribunal ought to supersede the ancient and barbarous method of 
trial by combat. I desire to register here my personal appreciation 
of the great service which was rendered by The Hague Conferences 
of 1899 and 1907 in furnishing the world a definite system of inter- 
national judicature. Along the general lines of The Hague Conven- 
tion the nations should build a new and more substantial structure 
eliminating those weaknesses and undesirable features which were 
the consequence of the improper motives of certain powers, particu- 
larly the German Empire, and of their false conception of their 
national interests. It would be folly to cast aside all that has been 
achieved and attempt to create something entirely different. In our 
desire to make this new era a better one than the one from which we 
have emerged, we must not let idealism run away with common sense 
or assume that we possess a mentality far superior to our predecessors. 
Past methods are not all worthless because they failed to accomplish 
their objects in the extraordinary and abnormal circumstances which 
resulted in the World War. I do not believe that any human agency 
could have prevented the conflict through which we have passed so 
long as greed and ambition were the supreme impulses of the German 
Autocracy. If the German Government had not been inspired by 
these evil motives and had not believed that it possessed the physical 



power to gratify its desires, who is prepared to say that The Hague 
Convention of 1907 would not have furnished a sufficient instrument 
to settle peaceably controversies which might without it have pro- 
duced international wars? 

The fact is that under present conditions, even with Autocracy 
vanquished and Democracy triumphant, we have to face the same 
problems, though modified by a better conception of the truth and 
a less ruthless disregard of right. It is, I believe, a better world, 
but by no means a perfect world. Though less threatened by the 
sinister influence of national avarice"we are not free from it entirely. 
I do not know that the world will ever be until it is spiritually 
regenerated. As I see it there is only one principle for the direction 
of international intercourse which will under present conditions 
command the universal approval of nations, and that is the principle 
of justice, not in the general and abstract sense, but in the restricted 
sense of legal justice. 

Justice in the broad sense is attractive to the reformer and the 
idealist. As a Nation we ought and doubtless will be guided by it 
in our relations with other nations. But, when we come to formulate 
our foreign policies upon the belief that justice in the abstract is a 
dominant force in the regulation of world affairs, we are building 
on a foundation which, however desirable, is by no means certain. We i 
must recognize the fact, unpalatable though it may be, that nations 
to-day are influenced more by selfishness than by an altruistic senti- 
ment of justice. The time may come when the nations will change 
their present attitude through a realization that uniform justice in 
foreign as well as in domestic affairs is the highest type of expedi- 
ency, but that time has not yet come, and, if we are wise, we will not 
deceive ourselves by assuming that the policies of other Governments 
are founded on unselfishness or on a constant purpose to be just even 
though the consequences be contrary to their immediate interests. 

Yet, while abstract justice cannot be depended upon as a firm 
basis on which to constitute an international concord for the pre- 
servation of peace and good relations between nations, legal justice 
offers a common ground where the nations can meet to settle their 
controversies. No nation can refuse in the face of the opinion of 
the world to declare its unwillingness to recognize the legal rights 
of other nations or to submit to the judgment of an impartial 



8 

tribunal a dispute involving the determination of such rights. The 
moment, however, that we go beyond the clearly defined field of 
legal justice we enter the field of diplomacy where national inter- 
ests and ambitions are today the controlling factors of national 
action. Concession and compromise are the chief agents of diplo- 
matic settlement instead of the impartial application of legal justice 
which is essential to a judicial settlement. Furthermore the two 
modes of settlement differ in that a judicial settlement rests upon 
the precept that all nations, whether great or small, are equal, but 
in the sphere of diplomacy the inequality of nations is not only 
recognized but unquestionably influences the adjustment of interna- 
tional differences. Any change in the relative power of nations, a 
change which is continually taking place, makes more or less 
temporary diplomatic settlements, but in no way affects a judicial 
settlement. 

However then international society may be organized politically 
for the future and whatever machinery may be set up to minimize 
the possibilities of war, I believe that the agency which may be 
counted upon to function with certainty is that which develops and 
applies legal justice. Every other agency, regardless of its form, 
will be found, when analyzed, to be diplomatic in character and sub- 
ject to those impulses and purposes which generally affect diplomatic 
negotiations. With a full appreciation of the advantage to be 
gained for the world at large through the common consideration of 
a vexatious international question by a body representing all nations, 
we ought not to lose sight of the fact that such consideration and the 
action resulting from it are essentially diplomatic in nature. It is, 
in brief, the transference of a dispute in a particular case from the 
capitals of the disputants to the place where the delegates of the 
nations assemble to deliberate together on matters which affect their 
common interests. It does not — and this we should understand — 
remove the question from the processes of diplomacy or prevent the 
influences which enter into diplomacy from affecting its considera- 
tion. Nor does it to an appreciable extent change the actual in- 
equality which exists among nations in the matter of power and 
influence. 

On the other hand, justice applied through the agency of an im- 
partial tribunal clothed with an international jurisdiction eliminates 



9 

the diplomatic methods of compromise and concessions and recog- 
nizes that before the law all nations are equal and equally entitled 
to the exercise of their rights as sovereign and independent States. 
In a word, international democracy exists in the sphere of legal 
justice and, up to the present time, in no other relation between 
nations. 

Let us then with as little delay as possible establish an international 
tribunal or tribunals of justice with The Hague Court as a foundation : 
let us provide an easier, a cheaper, and a better procedure than now 
exists : and let us draft a simple and concise body of legal principles 
to be applied to the questions to be adjudicated. When that has been 
accomplished, and it ought not to be a difficult task, if the delegates 
of the Governments charged with it are chosen for their experience 
and learning in the field of jurisprudence, we will, in my judgment,. 
have done more to prevent international wars through removing their 
causes than can be done by any other means that has been devised or 
suggested. 

I have but just returned from six months spent in the settling of 
controversies between nations through the medium of a great inter- 
national conference, which followed the customs and practices of 
diplomacy as they will unquestionably be followed by all deliberative 
bodies representing the nations. I believe that I know and under- 
stand the currents and countercurrents which impelled action and 
influenced decisions in that conference. It is not my purpose to re- 
view the conduct of those negotiations or to imply more than that 
they were diplomatic in character. But with this experience vividly 
in mind I can not too strongly assert that international justice inter- 
preted and applied by an impartial court can do more to prevent 
future wars than any agency, single or collective, operating in the 
sphere of diplomacy. 

The mind of the world was never more receptive to the idea of 
applied justice. Mankind has endured such terrible woes from in- 
justice and lawlessness that they seek above all things the restora- 
tion of the rule of law and justice. The governments can not ignore 
this universal demand. They should not. They can not too soon 
set up the machinery and let it get to work in the settlement of the 
controversies which continue to arouse apprehension and concern 
134639—19 2 



10 

among those who seek to see a sure foundation laid for a permanent 
peace. 

To adopt an international code of principles for the guidance 
of an international court of justice is, I believe, as essential as the 
creation of the court itself. After every great international war 
changes in methods and weapons have compelled a revision of the 
rules of warfare. The principles have not changed so much as their 
application to new conditions. The changes that will have to be made 
after this war, which for magnitude and ingenuity in the destruc- 
tion of life and property surpassed all previous wars, are numerous 
and radical. In the past governments have employed their armies 
and navies against one another as champions of their respective 
nations. The noncombatants of the populations have formed a class 
which was without military value and which was on that account 
free from hostile attack. But to-day each able-bodied individual 
in a state, though not serving in the armed forces of a belligerent, 
is a distinct asset in the prosecution of a war. The workman in the 
shop, the peasant in the field, the miner underground, the sailor on 
the merchant ship, are necessary factors in the prosecution of a war 
as they never were before. This Great War has been a war of peo- 
ples, and not a war of armies and navies alone. Whole nations have 
been mobilized in the supreme effort to vanquish their enemies. How 
this manifest fact will affect the rules for the immunity and protec- 
tion of noncombatants is a question which will require very careful 
.consideration. 

The introduction of the submarine, the aeroplane, and the dirigi- 
ble, made possible by the invention of the internal-combustion engine, 
the use of the wireless telegraph and telephone, and the emploj^ment 
of lethal gases, of supercannon and possibly of aerial torpedoes make 
obsolete many rules formerly observed but now ignored. 

What is to become of the rules of blockade as they existed prior 
to 1914? Are we to continue the farce of distinguishing between 
articles contraband and noncontrahand? What will be the rights and 
duties of neutrals after the experience of the last five years? Will 
there be and can there be such a thing as neutrality when a war in- 
volves many nations and shatters the commercial and social order of 
the whole earth? These are. some of the problems which will have 
to be solved by those who will be charged with redrafting the rules 
of war on land and sea. 



11 

New and puzzling questions are also presented as to the application 
•of principles of right in times of peace. The employment of air- 
craft and undersea vessels in commerce and communication, the regu- 
lation of the use of wireless telegraphy, the rights as to the operation 
of ocean cables, and other subjects of like nature should be fully 
discussed before the principles of international law are put into final 
codified form. Then, too, there is another group of subjects as to 
which definite principles should be laid down in order that the 
present uncertainty and confusion of rights may be removed. 
Among these subjects are the right of expatriation and naturaliza- 
tion, the precise nature of business domicile, the right to retain title 
to ocean cables cut or diverted during a war, and others which it is 
needless to recite, as enough has been stated to show the importance 
of the task which lies before the conference charged with the codifica- 
tion of the principles of law applicable in time of peace and the 
rules of conduct in time of war. 

The system of mandatories under the League of Nations as provided 
in the Covenant, which to the casual observer appears simple in prin- 
ciple and application, is a novelty in political authority which the I 
more it is studied from the legal standpoint the greater the number of j 
problems which it presents. 

The determination of the possession of the sovereignty over terri- 
tory is essential to the determination of international rights and ob- 
ligations. In the case of territory subject to a mandatory, the ques- 
tion therefore arises as to who possesses the sovereignty of such 
territory. Certainly not the mandatory which derives its authority 
solely from an agreement conferring upon it a limited exercise of 
sovereign rights. Is it then the League of Nations which possesses 
the full sovereignty, the exercise of which is delivered in part only to 
an agent or trustee ? That would seem to be the logical answer, and 
yet consider the questions which that answer raises. Does the League 
of Nations possess the attributes of an independent state so that it can 
function as a^ppssessor of sovereignty over territory ? Is the League 
then a ffiipi.' i ru -fw-nl world state clothed with world sovereignty ? If 
the League possesses the sovereignty, can it avoid responsibility for 
the misconduct of its agent, the mandatory? If the League is not 
capable of possessing sovereignty, then who does possess it, who is 
responsible for the acts of the mandatory ; and upon what ultimate 
authority does the League base the issuance of a mandate? 



12 

I might present a score of other questions of a similar nature which 
with those propounded will have to be definitely answered some time 
if the mandatory system comes into operation. To-day these ques- 
tions are academic and may be considered technical and no doubt by 
many are so considered, but it may not be long before they become 
concrete and very practical. It is not an overstatement to say that 
nine-tenths of all international controversies arise over questions per- 
taining to the possession of sovereignty and the conflict of sovereign 
rights. I do not think that mandatories and the source of their 
authority can escape from the test of the legality of their exercise of 
sovereign rights. The system must be philosophically and logically 
worked out from the legal point of view or it will result in confusion. 
I do not say this in disparagement of the system, but only as a re- 
minder that often that which appears simple is exceedingly complex 
when analyzed. It is needless, however, to say this to a body of 
jurists whose experience has taught them that difficulties are only 
too often hidden in a statute or a treaty provision, which seems at 
first plain and easy of enforcement. Personally, I believe that a 
definite legal formula can be found to bring the mandatory system 
into harmony with the conception of sovereignty, and the determina- 
tion of international rights and obligations. But I am not prepared 
at this time to propound a theory to meet fully the situation, which 
possesses novel features, to say the least. 

In addition to the variety of questions thus raised in connection 
with the idea of mandates, the principles governing the establish- 
ment of international servitudes will require careful study in order 
that they may be more clearty formulated than they have been in the 
past. While there have been in certain instances rights of way over 
territory, the rules applicable to them have not been as fully defined 
as in the case of the common use of international waterways and 
of special rights in territorial waters. The new theory of servitudes 
on land differs from the old, which was based on expediency and 
mutual advantage, in that the new depends on an assertion of right 
which arises from an asserted principle that a nation ought not to 
be against its will barred from the sea, the common property and 
highway of mankind, and thus deprived of the opportunity to engage 
in ocean-borne commerce. How far this principle should go in 
support of the right to free ports and land transit is a question which 



13 

must be answered with due regard to the rights of territorial sover- 
eignty and national safety. 

I might expand the list of subjects for consideration suggested by 
the Treaty of Peace which will invite the- learning and wisdom of 
those who will, I sincerely hope, be charged with the codification of 
the principles of international law. Even if I subject myself to the 
charge of repetition, let me say that I most earnestly advocate the 
formulation of such a code by an international conference of jurists 
and publicists. With a definite standard of legal rights sanctioned 
by the nations the administration of international relations as well as 
the administration of international justice will become more con- 
sistent and less a prey to expediency and political opportunism. 

There is one other subject of a legal character of which I desire 
to speak because it has excited much general discussion at homo 
and abroad, and been the cause of some very intemperate and ill- 
considered expressions of opinion. I refer to the trial of the former 
German Emperor. I have a personal interest in that subject be- 
cause it was my lot to preside over the Commission on Responsi- 
bilities constituted by resolution of the Conference on the Prelimi- 
naries of Peace and charged, among other things, with a consider- 
ation of the action which should be taken in regard to individuals 
responsible for the war and for violations of the laws and customs 
of war. 

The Commission consisted of fifteen members, two named, by 
each of the following powers: The United States, the British 
Empire, France, Italy and Japan, and one member each for Bel- 
gium, Greece, Poland, Roumania and Serbia. My American col- 
league was Dr. James Brown Scott. Sir Gordon Hewart, the At- 
torney General of England, and Sir Ernest Pollock, the Solicitor 
General, alternated with each other as head of the British delegation. 
Among the other members were the jurisconsults Larnaude of 
France and Rolin-Jacquemyns of Belgium, Mr. Politis, the Greek 
Minister of Foreign Affairs and the Right Honorable W. F. Massey, 
the Prime Minister of New Zealand. 

The Commission took up its work through the medium of three 
sub-Commissions and after two months of deliberations submitted 
its report subject to certain reservations by the American and Japa- 
nese delegations which were set forth and explained in separate 
memoranda annexed to the report. 



14 

It was apparent at the very beginning of our sessions that cer- 
tain members of the Commission were determined before every- 
thing else to bring the Kaiser to trial for a criminal offense before 
an international high tribunal of justice to be constituted for the 
purpose primarily of determining his guilt and imposing upon him 
a suitable penalty for his crimes. There were three charges which 
could be urged against him, namely, that he was responsible for 
the war, that he was responsible for the violation of the neutrality 
of Belgium and Luxemburg, and that he was chargeable with the 
flagrant violations of the laws and customs of war perpetrated by 
the armed forces of Germany. 

The first two charges were the ones which appealed most strongly 
to public opinion and aroused the bitterest indignation both in 
Europe and America. That any individual could plunge the whole 
world into such years of suffering resulting in the death of millions 
of human beings and the waste of billions of treasure, in the dis- 
organization of society and the bankruptcy of nations, and go scot 
free outraged mankind's sense of justice. From everywhere arose 
the cry for vengeance. It was under this pressure of popular demand 
and handicapped by the announced purpose of certain of its mem- 
bers to punish the Kaiser that the Commission began its task of 
studying the question of his criminal responsibility. From every 
point of view the question was examined and the arguments for and 
against his trial were considered, but in the end it was unanimously 
decided that a report could not be made charging the Kaiser with 
legal criminality for beginning the war or for invading Belgium and 
Luxemburg. It was recognized that he had committed a great moral 
crime, an unpardonable offense against humanity, but the Commis- 
sion was forced to find that there was no positive law declaring acts 
such as he had committed to be criminal and imposing a penalty on 
the perpetrator. The decision was reached with reluctance because 
of the firm conviction that the German ruler was guilty, although his 
guilt was not of a nature which could be declared and punished by a 
judicial tribunal. 

The conclusions reached by the Commission read as follows : 

" 1. The acts which brought about the war should not be charged against 
their authors or made the subject of proceedings before a tribunal. 

" 2. On the special head of the breaches of the neutrality of Luxemburg and 
Belgium, the gravity of these outrages upon the principles of the law of nations 



15 

and upon international good faith is such that they should be made the subject 
of a formal condemnation by the Conference. 

" 3. On the whole case, including both the acts which brought about the war 
and those which accompanied its inception, particularly the violation of the 
neutrality of Belgium and Luxemburg, it would be right for the Peace Con- 
ference, in a matter so unprecedented, to adopt special measures and even to 
create a special organ in order to deal as they deserve with the authors of 
such acts. 

" 4. It is desirable that for the future penal sanctions should be provided for 
such grave outrages against the elementary principles of international law." 

The report in this declaration emphasizes the respect of the Com- 
mission for the supremacy of law over the natural impulse to be 
avenged upon one who richly deserved to pay the penalty for his 
evil deeds. 

The third charge as to " violations of the laws and customs of 
war " was the one on which an agreement could not be reached. The 
conclusion in the report is thus stated : 

" All persons belonging to enemy countries, however high their positions may 
have been, without distinction of rank, including Chiefs of States, who have 
been guilty of offenses against the laws and customs of war or the laws of 
humanity, are liable to criminal prosecution." 

By this conclusion it is evident that the Kaiser might be brought 
to trial before a court with criminal jurisdiction, although to estab- 
lish his guilt as a violator of " the laws and customs of war or laws 
of humanity " would be no easy matter provided the principles of 
legal justice and the common rules of evidence were observed by the 
tribunal before which he was brought. That he should be declared 
innocent of the charge was by no means an impossibility, if his 
judges were impartial and not merely instruments of vengence. 

To this conclusion the American members of the Commission 
dissented, stating their position thus in their memorandum : 

" The American representatives are unable to agree with this conclusion, in 
so far as it subjects to crimnal, and, therefore, to legal prosecution, persons 
accused of offenses against ' the laws of humanity,' and in so far as it sub- 
jects Chiefs of States to a degree of responsibility hitherto unknown to munici- 
pal or international law, for which no precedents are to be found in the 
modern practice of nations. 

" Omitting for the present the question of criminal liability for offenses against 
the laws of humanity, which will be considered in connection with the law to 
be administered in the national tribunals and the High Court, whose constitution 
is recommended by the Commission, and likewise, reserving for discussion in 
connection with the High Court the question of the liability of a Chief of State 



16 

to criminal prosecution, a reference may properly be made in this place to 
the masterly and hitherto unanswered opinion of Chief Justice Marshall, in 
the case of the Schooner Exchange v. MtiFadden and Others (7 Crunch, 116), 
decided by the Supreme Court of the United States in 1812, in which the reasons 
are giveh for the exemption of the sovereign and of the sovereign agent of a 
State from judicial process. This does not mean that the head of the State, 
whether he be called emperor, king, or chief executive, is not responsible for 
breaches of the law, but that he is responsible not to the judicial but to the 
political authority of his country. His act may and does bind his country and 
render it responsible for the acts which he has committed in its name and its 
behalf, or under cover of its authority ; but he is, and it is submitted that he 
should be, only responsible to his country, as otherwise to hold would be to 
subject to foreign countries a chief executive, thus withdrawing him from the 
laws of his country, even its organic law, to which he owes obedience, and 
subordinating him to foreign jurisdictions to which neither he nor his country 
owes allegiance or obedience, thus denying the very conception of sovereignty. 

" But the law to which the head of the State is responsible is the law of his 
country, not the law of a foreign country or group of countries ; the tri- 
bunal to which he is responsible is the tribunal of his country, not of a foreign 
country or group of countries ; and the punishment to be inflicted is the punish- 
ment prescribed by the law in force at the time of the commission of the act, 
not a punisment created after the commission of the act. 

* * * " The American Representatives also believe that the above observa- 
tions apply to liability of the head of a State for violations of positive law in 
the strict and legal sense of the term. They are not intended to apply to what 
may be called political offences and to political sanctions. 

" These are matters for statesmen, not for judges, and it is for them to de- 
termine whether or not the violators of the treaties guaranteeing the neu- 
trality of Belgium and of Luxemburg should be subjected to a political sanction." 

I wish to direct your attention to this last sentence because the 
distinction between a political sanction and a judicial sanction de- 
termines the basis of the right to impose a penalty on the head of a 
foreign State. 

As to all individual enemies chargeable with violations of the laws 
and customs of war and the laws of humanity, the report recom- 
mended the creation of a high international tribunal to try such 
persons as were not apprehended and tried before national courts of 
the Allied and Associated Powers, and who were selected for trial 
by a Prosecuting Commission of five members, one being named by 
each of the five principal powers. 

The scheme thus proposed for the creation of a High International 
Court of Criminal Jurisdiction, with its complex machinery and 
necessity for national legislation to give it authority, to administer 



17 

criminal laws enacted by various nations and also to interpret and 
apply the laws of humanity, was a novelty to which the American 
representatives refused to give full approval. Early in the discus- 
sions they submitted the following memorandum on the method 
which they favored for bringing to justice criminals of this sort : 

" 1. That the military authorities, being charged with the interpretation of 
the laws and customs of war, possess jurisdiction to determine and punish 
violations thereof ; 

" 2. That the military jurisdiction for the trial of persons accused of violations 
of the laws and customs of war and for the punishment of persons found guilty 
of such offences is exercised by military tribunals; 

" 3. That the jurisdiction of a military tribunal over a person accused of the 
violation of a law or custom of war is acquired when the offence is committed 
on the territory of the nation creating the military tribunal or when the person 
or property injured by the offence is of the same nationality as the military 
tribunal ; 

" 4. That the law and procedure to be applied and followed in determining 
and punishing violations of the laws and customs of war are the law and the 
procedure for determining and punishing such violations established by the 
military law of the country against which the offence is committed ; and 

" 5. That in case of acts violating the laws and customs of war involving more 
than one country, the military tribunals of the countries affected may be united, 
thus forming an international tribunal for the trial and punishment of persons 
charged with the commission of such offences." 

In their memorandum annexed to the report, the American repre- 
sentatives, for the sake of reaching an agreement, conceded the pos- 
sible expediency of an international commission to pass upon the 
military crimes affecting the nations of more than one country, be- 
cause, though it was not directly in accord with their idea of mixed 
courts-martial, it did not contradict the principle. 

The American representatives did, however, oppose the extension 
of the jurisdiction of such a tribunal of offences against " the laws of 
humanity " as was recommended in the report, first, on the ground 
that the submission to the Commission on Responsibilities by the 
Peace Conference was limited in terms to offences against " the 
laws and customs of war," and, second, because the laws of humanity 
do not constitute a definite code with fixed penalties which can be 
applied through judicial process. The American Commissioners thus 
stated the second ground for their objection: 

"As pointed out by the American representatives on more than one occasion, 
war was and is, by its very nature, inhuman, but acts consistent with the laws 



18 

and customs of war, although these acts are inhuman, are nevertheless not the 
object of punishment by a court of justice. A judicial tribunal only deals with 
existing law and only administers existing law, leaving to another forum 
infractions of the moral law and actions contrary to the laws and principles of 
humanity. A further objection lies in the fact that the laws and principles of 
humanity are not certain, varying with time, place, and circumstance, and 
according, it may be, to the conscience of the individual judge. There is no 
fixed and universal standard of humanity." 

The report of the Commission on Responsibilities, with the reserva- 
tions annexed, was laid before the Conference and received the im- 
mediate consideration of the Council of Four, or, as it is often called, 
the Supreme Council of the Allied and Associated Governments. The 
decision reached by the Council is contained in Articles 227 to 230 of 
the Peace Treaty. 

Article 227 arraigns the former German Emperor for " a supreme 
offence against international morality and the sanctity of treaties" 
and provides that a special tribunal to try him shall be constituted, 
composed of five judges appointed respectively by the United States, 
Great Britain, France, Italy, and Japan. It also declares that the 
tribunal in its decision "will be guided by the highest motives of 
international policy" and shall "fix the punishment which it con- 
siders should be imposed." 

Manifestly the tribunal thus created is not a court of legal justice, 
but rather an instrument of political power which is to consider the 
case from the viewpoint of high policy and to fix the penalty accord- 
ingly. And this is clearly stated in the reply of the Council to the 
observations of the German peace delegates on this subject. The 
pertinent portion of the reply reads as follows : 

"They (that is, the Council) wish to make it clear that the public arraign- 
ment under Article 227 framed against the German ex-Emperor has not a 
judicial character as regards its substance but only in its form. The ex- 
Emperor is arraigned as a matter of high international policy as the minimum 
of what is demanded for a supreme offence against international morality, the 
sanctity of treaties and the essential rules of justice." 

This course of procedure was in accordance with the suggestion 
made in the American memorandum that there might be a political 
sanction but no judicial sanction for the offences of having caused 
the war and violated the neutrality of Belgium and Luxemburg. 

Articles 228, 229, and 230 provided that persons accused of vio- 
lating the laws and customs of war should be delivered up by Ger- 



19 

many to be tried before national military tribunals of the Allied 
and Associated Powers, or, where the violation affected the na- 
tionals of more than one power, then before international military 
tribunals composed of members of the military tribunals of the 
powers interested. 

The recommendation of the Commission as to a general mixed 
commission to try such cases was rejected and the proposal of the 
American Commissioners in the memorandum laid before the Com- 
mission during its early sessions and repeated in its reservations 
was adopted by the Conference. 

Furthermore no jurisdiction was conferred upon any tribunal 
over offences against " the laws of humanity," which had been, as 
I have indicated, vigorously opposed by the American representa- 
tives. 

It was by no means an easy task to deal with the question of ex- 
pressing properly mankind's condemnation of the individual, whose 
inordinate vanity and greed were chiefly responsible for the dread- 
ful misery and waste which the world has endured and from the 
effects of which it will suffer for many years to come. It was 
difficult to subordinate the natural feeling of indignation and the 
instinct to do vengeance to a cold, dispassionate consideration of the 
character of the Kaiser's acts and their relation to law and justice. 
Yet one of the reasons that our country entered the war was to bring 
lawlessness to an end. We believed that an undeviating respect for 
law is essential to the prosperity and happiness of society and that 
the rigid maintenance of law, however distasteful it may be, is an 
imperative duty. It was with a determination to follow these pre-* 
cepts, to treat impersonally and judicially the submission of the 
Conference, and to avoid being influenced by our own desires or by 
the pressure of public sentiment that we performed our duties as 
the American members of the Commission on Responsibilities and 
filed our reservations to the report of the Commission. 

I have taken a good deal of your time and, I fear, have tried your 
patience unduly in reviewing this question of the trial and punish- 
ment of the Kaiser, and yet the deep interest which it has excited and 
the various opinions expressed by jurists and laymen which have been 
published seemed to me to entitle it to more than a passing notice. 

There is also another class of legal questions which are raised by 
some of the provisions of the Treaty of Peace as well as by some of the 



20 

propositions advanced at the Peace Conference. They are questions 
which have to do with constitutional powers and constitutional limi- 
tations. I shall not even attempt to suggest the subjects falling within 
this class. Those to which I have referred in detail pertain essentially 
to the principles and generally accepted rules of the Law of Nations 
and to the administration of international justice. To go beyond 
those subjects would be to enter the wide field of Constitutional Law. 
Into that field I shall not venture. 

In conclusion let me emphasize by repetition what I said at the be- 
ginning of my remarks, because it seems to me that the world is ap- 
proaching the most critical decision that it has had to make since his- 
tory began. Let me repeat : Nationalism must be maintained at all 
hazards. It must not be supplanted by Mundanism. It is equally 
imperative that within the nation Individualism should not be sub- 
ordinated to Classism. Individualism has been the great impulse to 
progress and liberty. It is the very lifeblood of modern civilization. 
Individual Eights, not Class Eights, should engage our concern and in- 
vite governmental protection wherever threatened. If we, Americans, 
abandon Individualism we have bartered away our birthright, we 
have cast aside that for which our forefathers were willing to die. 
The same is true of Individualism among nations. It must be main- 
tained if the peoples of the earth are to possess patriotism, love of 
liberty, and that generous devotion to national ideals which have 
made nations great and prosperous. 

Peace and contentment are found in a nation where a free people 
live under just laws justly administered. So peace among nations 
will prevail when their conduct toward one another is governed by 
just laws and when they submit their controversies to an impartial 
judiciary which will decide them according to the immutable prin- 
ciples of justice. 

To the achievement of this great good for the present and the 
future we should devote our thought and endeavor. To that end we 
should give our earnest support to Internationalism, a true Inter- 
nationalism which is founded on a deep and abiding faith in Nation- 
alism as the essential element of the present order. To-day by com- 
mon purpose and by united effort much may be accomplished. If we 
wait for a more propitious time, that time may never come. 



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